Richard A. Posner's Law, Pragmatism and Democracy
Rorty, Richard
LAW, PRAGMATISM, AND DEMOCRACY by Richard A. Posner Harvard University Press, 2003 xii+398 pp $35 cloth N- INETEENTH-CENTURY leftists assumed all that was necessary to create a just — society...
...But these same intellectuals are bewildered by the fact that millions of voters who have to scrimp to put meat on the table seem quite prepared to reelect a president who is doing his best to redistribute wealth and income from the poor to the rich...
...These people were, to be sure, clever politicians who knew how to work the system...
...The poor in the United States can not be persuaded to vote their interests—or even to vote—except at moments of extreme crisis such as the Great Depression...
...Unlike the neoconservative apologists for the Republican attempt to rip off the poor, he is a genuinely original thinker, as well as a prodigy of learning...
...The success the Republican Party has had at inculcating the idea that "big government" is stealing taxpayers' money rather than providing a needed social safety net makes it hard to believe that educating the masses has made them more responsible citizens, much less voters sympathetic to leftist ideas...
...Universal literacy, and additional years spent in school, did not have the results that our leftist predecessors foresaw, and it looks as if they never will...
...An educated electorate, they thought, would understand that the economy should maximize the happiness of all rather than just the wealth of investors...
...Maybe politics is not ennobling, and perhaps Hannah Arendt was wrong, as Posner argues she was, to try to invest the United States with the glamour of the Greek polis...
...Still, he says, "the pragmatic mood, the pragmatic culture that Tocqueville described, has given rise to a different pragmatism— what I call 'everyday pragmatism'— which has much to contribute to law...
...Posner is so suspicious of romance and idealism— far more suspicious than Tocqueville ever was—that he has trouble conceding that either has played a role in our political history...
...The motives and the consequences of segregation had been perfectly clear ever since the passage of the Jim Crow laws, decades before...
...Posner's account of BOOKS how the American political system works has no room for heroes and heroines of this narrative such as Susan B. Anthony, Eugene V. Debs, Woodrow Wilson, FDR, Thurgood Marshall, Betty Friedan, and Lincoln himself...
...This is not how I remember the United States at the time of the Brown decision...
...Judges will not learn how to do their job better by reading Dewey and William James...
...But occasionally it is much more than that...
...Separate but equal" was not "a proven failure...
...pOSNER'S REALISM and cynicism are healthy antidotes to leftist fantasies of an electorate modeled on a university seminar...
...What we have, and what we should be satisfied with, is an understanding of democracy that "accepts people as they are, does not think it feasible or desirable to try to change them . . . and regards representative democracy as a pragmatic method of controlling, and providing for an orderly succession of, the officials who (not the people) are the real rulers of the nation...
...The Brown decision was initially greeted with incredulity, and there were fears that the backlash would be so strong as to prevent President Dwight D. Eisenhower from enforcing it...
...We should put aside the illusion that the American public will gradually become better informed and wiser...
...When they do vote, it is often merely to display their ignorance...
...But he thinks, rightly, that "pragmatism has no political valence" and that Dewey's social hopes have nothing in particular to do with these views...
...In rejecting both, he sees himself as 100 n DISSENT / Fall 2003 carrying through on Justice Oliver Wendall Holmes's criticisms of legal formalism...
...This book is one of his best—vigorously argued and written with wit and panache...
...Many leftist intellectuals still hope that educating the masses, or educating them to a higher level, will eventually make the United States into the "participatory" or "deliberative" democracy of John Dewey's dreams—a country most of whose citizens spend time discussing the merits of alternative economic and social policies and then use their votes to back up their decisions...
...Intellectuals of this sort usually believe that the more the masses deliberate, the more appealing they will find social democracy...
...Our country's self-image is still shaped, and its history is still being molded, by a Lincolnesque narrative of moral progress—progress made by appeals to the better angels of our nature...
...Nor does he think that philosophical pragmatism has much to contribute to legal thought...
...DISSENT / Fall 2003 n 101...
...He asks us to recognize that modern democratic governments, including our own, are better described as what Alan Ryan has called "elective aristocracies" than as examples of popular rule...
...For Concept 2 democrats, democracy is "not self-rule" but is "rule by officials who are, however, chosen by the people and who if they don't perform to expectations are fired by the people...
...Americans have become, in the years since Brown, proud of Marshall and of Martin Luther King—of dreamers who helped their country to realize its promise, and to overcome its shameful past...
...Concept 2 democrats "don't think that jawing in the agora is the most productive way for people to spend their time...
...Posner concludes that "deliberative democracy, at least as conceived by Dewey, is as purely aspirational and unrealistic as rule by Platonic guardians...
...But just as Pericles was right when he said there was something ennobling about being a free citizen of Athens, there is still something wonderful about being an American— something that Posner has trouble taking account of...
...Everyday pragmatism," Posner continues, "is the mindset denoted by the popular usage of the word 'pragmatic,' meaning practical and businesslike, 'no-nonsense,' disdainful of abstract theory and intellectual pretension, contemptuous of moralizers and utopian dreamers...
...If this assumption had proved true, the class struggle in the United States would have been over long ago...
...Posner admits that the Court "may have waited too long in the case of segregation," but that is as far as he will go toward conceding that the Brown decision was a moral breakthrough, and that it has served as a template for later breakthrough decisions, such as the Court's recent decision to overturn anti-sodomy laws...
...By doing so, they made their country different and better...
...We should take note of the tautologous but depressing fact that half the population has an IQ below 100...
...Social democracy would be the natural consequence of educating the workers and giving them the vote...
...DISSENT / Fall 2003 n 99 BOOKS To see the American political system in this way is to substitute what Posner calls "Concept 2" democracy for Deweyan "Concept 1" democracy...
...Posner is very convincing when he describes how the American political system actually works, how the federal courts actually function, and how public opinion and elections begin to play a role only when the political elites have made a mess of things...
...RICHARD RORTY teaches philosophy in the comparative literature department at Stanford University...
...That court, he thinks, got too far out in front of public opinion and so created a fierce backlash to its decision...
...This latter sort of pragmatism is embodied in Posner's own distinctive "law and economics" brand of judicial decision-making...
...Most of the time American democracy is a matter of pragmatic compromise between interest groups...
...He is quite willing to drop the pretense that the federal judiciary is above the battle and to admit that it is as political an institution as are the other two branches of the federal government...
...He contrasts it with the Brown court, which he describes as sensibly "waiting until such segregation was largely limited to the former confederate states and 'separate but equal' was a proven failure, before ruling that segregation was unconstitutional...
...He is right when he says that the "practical advantages of our Concept 2 democracy and the lack of any solid evidence of the feasibility or desirability of moving to Concept 1 have persuaded the vast majority of the American people to accept, more or less cheerfully, the system we have...
...LAW, PRAGMATISM, AND DEMOCRACY by Richard A. Posner Harvard University Press, 2003 xii+398 pp $35 cloth N- INETEENTH-CENTURY leftists assumed all that was necessary to create a just — society was universal suffrage and free schools...
...It is not for nothing that our democracy has been seen, by millions of people throughout the last two centuries, as more than just another arena of competition between interest groups...
...He thinks, for example, that the Roe Court would have been wiser to uphold the Texas abortion statute, while letting some more liberal states experiment with decriminalizing abortion...
...They were able to change people's ideas about where their interests lay, and thus to create and mobilize new interest groups...
...It waited, in short, until the consequences of segregation were clear...
...Blacks who were trying to buy houses in the suburbs of New York and Chicago in order to get their children into decent schools did not think that segregation was a southern anomaly...
...But they were also utopian dreamers—the sort of people for whom Posner has little use...
...Richard A. Posner, a federal appellate judge who is one of the most admired figures in the American legal system, thinks we should face this fact...
...Able to draw upon an amazingly broad range of reading, he resists stereotypes and allegiances, and goes his own way...
...Posner, a philosophy buff who cheerfully calls himself a "moral relativist," is happy to endorse Dewey's anti-foundationalist and contextualist views about knowledge, rationality, and morality...
...It is those latter moments that we have in mind when we explain to our children what a great thing it is to be an American...
...We should admit that "ordinary people have as little interest in complex policy issues as they have aptitude for them...
...But he is also right to note that "legitimacy must not be confused with enthusiasm" and then to ask whether "Concept 2 democracy is . . . the sort of thing Americans are willing to die for...
...This approach relies on cost-benefit analyses of the socio-economic consequences of deciding a case in one way rather than another...
...Concept 2 democracy is a matter of balancing competing interests, not of debating the worth of ideas, and so is no more ennobling than commerce...
...Perhaps Dewey was overly nostalgic for the Burlington, Vermont, of his own youth—a period when the United States could still revel in its Tocquevillian newness...
...The connection between the liberal-visionary and the pragmatic" is indeed, as he says, "purely historical and contingent...
...Americans are not just proud of their flag...
...The United States has not been a beacon of hope for the world merely because American voters have been able to fire politicians who fouled up...
...Though often pigeonholed as a conservative, Posner has little in common with William Buckley, William Kristol, or George Will...
...STILL, THERE IS something missing in Posner's account of American democracy...
...They don't believe that politics has intrinsic value or that political activity is ennobling...
...It was just a lie—a lie that had long been exposed...
...Neither Calvin Coolidge nor George W. Bush would have been elected...
...Posner contrasts the application of this kind of pragmatism to law with the originalism of a Robert Bork and the moralizing of a Ronald Dworkin...
...They are also proud of having made their country morally better than it used to be...
...It is not an adequate answer to that question to say, as Posner does, that "Americans' primary allegiance is to more concrete objects . . . such as the American flag . . . than to a particular democratic ideology...
...So they would elect candidates who would pass laws that would guarantee fair shares for all citizens and equal opportunities for all children...
...But it has been proved false...
Vol. 50 • September 2003 • No. 4
